Newman v. Willitts

78 Ill. 397

• Court: Illinois Supreme Court
• Decided: September 15, 1875
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

This is a writ of error to the Mercer circuit court, to bring up the record of the proceedings in an action of forcible entry and detainer, heard in that court on an appeal from a justice of the peace, in which action Wells Willitts was plaintiff and Sophia C. Newman was defendant.

• A jury being waived, the court tried the issue between the parties, and found for the plaintiff.

There is nothing in the points made by plaintiff in error. The decree of the circuit court in favor of defendant against plaintiff, found that Mrs. Newman had a life estate in certain lands (describing them), and decreed that the judgment in favor of defendant against her be revived, and that execution issue thereon, and that the sheriff should cause to be set off to plaintiff in error her homestead, out of the described lands, and that he sell the remainder to satisfy the judgment.

Defendant in error, the party plaintiff in this decree, after the entry of the same, sued out an execution against plaintiff in error, and placed the same in the hands of the sheriff of the county, to be executed. The sheriff levied the writ on the lands described in the decree, and so returned, and, at the same time, made return of the affidavit of six persons, naming them, and describing themselves as householders and citizens of Mercer county, and reciting therein that they had been summoned .by the sheriff to appraise and set off the homestead of plaintiff, in and upon said lands, and made the oath required in such cases.

It would appear, the portion set off to plaintiff was. ten acres, embracing the dwelling house, barn, out houses, spring and garden, and twenty acres adjoining, embracing the orchai’d, all lying in a compact body, and worth fully $1000, and making a very comfortable home. The balance of the land was sold by the sheriff to defendant, and after the time of redemption expired, he received the sheriff’s deed therefor.

A demand for possession of these lands being refused, this action was brought.

The homestead was set off, for aught we can see, in conformity with the statute, and complaint of plaintiff, that the whole forty acre tract was not given to her, has no foundation. She has a homestead worth one thousand dollars and more, and thus has the demand of the law been satisfied. It is stipulated, the entire forty acres were worth more than one thousand dollars, consequently she was not entitled to them as a whole.

We perceive no error in the record, and affirm the judgment of the circuit court.

Judgment affirmed.